A federal judge ruled Monday that the National Security Agency program which collects information on nearly all telephone calls made to, from or within the United States is likely to be unconstitutional.

U.S. District Court Judge Richard Leon found that the program appears to run afoul of the Fourth Amendment prohibition on unreasonable searches and seizures. He also said the Justice Department had failed to demonstrate that collecting the so-called metadata had helped to head off terrorist attacks.

There is a long history government wiretapping. In the Olmstead case (1928), SCOTUS said there is no expectation of privacy in a phone call. No warrant required. That changed in 1967, in the Katz case, whereby investigators need a warrant (with some exceptions).

So, the government gets around that by saying the NSA is not an investigating body. It merely gathers information. The investigators still need a warrant, but once they have the warrant, they can access the NSA database.

This judge better hope he never did anything Illegal, Immoral or ‘I’mbarassing. If he did, the NSA will be showing him the evidence befoire the end of the day, and telling him that it will be made public if he doesn’t reverse his opinion.

"So, the government gets around that by saying the NSA is not an investigating body. It merely gathers information. The investigators still need a warrant, but once they have the warrant, they can access the NSA database.

In theory, this should work just fine.

Even if the government doesn't collect this information, it doesn't change the fact that the information is still there to be collected by those that have the means to do so (i.e. corporations, or foreign governments).

NSA or not, there can be no expectation of privacy in an electronic communication of any kind.

So, the government gets around that by saying the NSA is not an investigating body. It merely gathers information. The investigators still need a warrant, but once they have the warrant, they can access the NSA database.

The problem with that rationale is that using it they have a "information-gathering" crew could go into your house collect everything, have the investigation-crew talk to people and then have "suspicion of reasonable cause" wherewith to get a warrant and go through your things.

No good will come of this.

27
posted on 12/16/2013 12:31:26 PM PST
by OneWingedShark
(Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)

The only way it plays out is in court, usually on criminal charges. The judges then are pretty good about tossing evidence obtained without a warrant.

So, the practice of over-sampling (if you will) has no downside risk. None. The bootstrapping issue you raise doesn't exist for the investigators. They have to have suspicion before they can access your NSA file, and armed with suspicion, they can easily get a warrant.

Let’s say it is ruled unconstitutional, as it should be. How would we know the program has been stopped? Should we trust the same government that was spying on us illegally to dismantle their own program?

The article made it a point to say that this had been going on for the past 7 years (gotta get the Bush admin in on this). But wasn’t the program more limited under the Bush admin? Didn’t they have to go to the FISA report and get a warrant to collect information about calls from SPECIFIC numbers, not a metadata collection?

34
posted on 12/16/2013 1:18:15 PM PST
by Purrcival
(Four more years of OBAMA??????????? I hope this country can survive.)

So, the government gets around that by saying the NSA is not an investigating body. It merely gathers information. The investigators still need a warrant, but once they have the warrant, they can access the NSA database.

The Fourth Amendment is fairly comprehensive:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. My phone usage is under contract for me to have private conversations with persons of my choosing. those having the conversation or email have the reasonable expectation of privacy. If I keep a letter someone sent to me, those are MY papers. They are property. For the government to take possession of those records without a warrant is to SEIZE them, whether taken from me or the phone company. If they record my conversation, they have seized that too. Hence they need a warrant, and it had better not be a fishing license. What would be legal I suppose is for the phone company to be required to maintain the records to be available by warrant. Yet under no circumstances can I see how the NSA or any other agency can take possession of any private property without due process.

39
posted on 12/16/2013 1:51:11 PM PST
by Carry_Okie
(0-Care IS Medicaid; they'll pull a sheet over your head and take everything you own to pay for it.)

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